New legal Update---separate issues than the ones recently before the Third Circuit Court.

Legal Update

Date: September 12, 2008

From: Robert R. Bryan, lead counsel

Subject: U.S. Supreme Court litigation on behalf of Mumia Abu-Jamal, death row, Pennsylvania

Introduction There has been extensive news attention to the ongoing federal proceedings concerning my client, Mumia Abu-Jamal, on the hotly contested issue of racism in jury selection and the ordering of a new jury trial on the question of life or death. (Abu-Jamal v. Horn, 520 F.3d 272 (3rd Cir. 2008).) The massive issue of racism will be presented to the U.S. Supreme Court later this year. However, few are aware that we have been actively litigating separate issues concerning fraud and the subornation of perjury by the Philadelphia Police Department and the District Attorney of Philadelphia. We are now before the Supreme Court regarding this governmental misconduct which resulted in Mumia being convicted and sentenced to death.

U.S. Supreme Court On July 18, 2008, I filed on behalf of Mumia in the Supreme Court, a Petition for Writ of Certiorari. (Abu-Jamal v. Pennsylvania, U.S. Sup. Ct. No. 08-5456.) This arises from adverse rulings by the Pennsylvania Supreme Court and the Philadelphia Court of Common Pleas.

The basis of the current litigation is that the prosecution persuaded witnesses to lie in order to obtain a conviction and death judgment against my client. The following are excerpts from what I have presented to the Supreme Court (without case citations and legal argument):

QUESTIONS PRESENTED FOR REVIEW

I.

Whether a new trial is mandated where there is newly discovered evidence establishing that the police (a) persuaded a witness to falsely identify a defendant as having shot a police officer, and (b) induced another to falsely claim she heard him confess, in violation of rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

II.

Whether a new trial is required where there is newly discovered evidence which establishes that the prosecution used a fabricated confession and false identification testimony in a capital murder trial, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.

III.

Whether the prosecutorial suppression of exculpatory evidence including the fact that (a) a witness was persuaded to lie that she had witnessed the homicide and (b) another encouraged to manufacture a false confession attributed to Petitioner, contravened Brady v. Maryland, 373 U.S. 83 (1963) and the right to a fair trial, due process of law, and a fair penalty trial guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.

IV.

Whether it is error for a state court to deny a hearing on newly discovered evidence of prosecutorial fraud and innocence, where the new claims involving police-induced false testimony were previously unknown to a petitioner and could not have been ascertained by the exercise of due diligence because of state interference.

. . . .

REASONS FOR GRANTING THE WRIT

. . . .

I.

THE NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT THE PROSECUTION MANIPULATED A PURPORTED EYEWITNESS TO FALSELY IDENTIFY PETITIONER AS THE SHOOTER, IN VIOLATION OF THE FIFTH, SIXTH EIGHTH, AND FOURTEENTH AMENDMENTS

Petitioner was deprived of his right to a fair and reliable determination of guilt and penalty, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the state's purported eyewitness, Cynthia White, was coaxed and coerced into providing false testimony against him. Her testimony was critical to the prosecution. If the jury had learned that her testimony was the product of threats and favors, there is a reasonable probability that the result of the trial would have been different. . . .

Newly discovered evidence from [Yvette} Williams establishes that White lied by falsely testifying that she observed Petitioner shoot police officer Daniel Faulkner. In fact, she did not see the shooting. White was threatened with imprisonment and in fear of being killed by the police if she did not help them by testifying against Petitioner. As Ms. Williams explained:

6. When [Cynthia White] told me she didn't see who shot Officer Faulkner, I asked her why she was “lying on that man” (Mumia Abu-Jamal). She told me it was because for the police and vice threatened her life. Additionally, the police were giving her money for tricks. “The way she talked, we were talking “G's” ($1,000.00). She also said she was terrified of what the police would do to her if she didn't say that Mumia shot Officer Faulkner. According to Lucky (White), the police told her they would . . . send her “up” . . . for a long time if she didn't testify to what they told her to say. . . .

7. Lucky was worried the police would kill her if she didn’t say what they wanted. . . . She was scared when she told me all of this plus she was crying and shaking. Whenever she talked about testifying against Mumia Abu-Jamal, and how the police were making her lie, she was nervous and very excited and I could tell how scared she was from the way she was talking and crying.

8. Lucky told me that what really happened that night was that she was . . . in the area . . . when Officer Faulkner got shot, but she definitely did not see who did it. She also told me that she had a drug habit and was high on drugs when it happened. She tried to run away after the shooting, but the cops grabbed her and wouldn't let her go. They took her in the car first and told her that she saw Mumia shoot Officer Faulkner.

Declaration of Yvette Williams, Jan. 28, 2002 at 2-3.

The declaration of Ms. Williams does not merely provide direct contradiction of the prosecution's key witness at trial, but it also materially undermines the integrity of the case against Petitioner. The fact that the prosecution witness testified falsely as a result of police inducement taints all of the evidence upon which the prosecution relied at the original trial, and offends the Constitution. Such proof would not only have impeached White’s testimony, but would have created doubt about the motives and trustworthiness of law enforcement personnel involved in this case. . . . The subornation of perjury from White results in the inescapable conclusion that the investigating officers caused other witnesses to lie, and that exculpa­tory and impeachment evidence was suppressed. Evidence that White was coerced into lying would have been far more significance than simply canceling out her testimony, which in and of itself was of major significance. It would raise a host of questions regarding why the police felt the need to fabricate evidence. . . .

II.

NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT PETITIONER WAS FOUND GUILTY AND SENTENCED TO DEATH THROUGH THE USE OF A POLICE FABRICATED CONFESSION IN VIOLATION OF THE FIFTH, SIXTH EIGHTH, AND FOURTEENTH AMENDMENTS

Petitioner was deprived of his right to a fair and reliable determination of guilt and penalty, as guaranteed by the Fifth, Eighth and Fourteenth Amendments, because of the state's reliance on a fabricated confession and by its thwart­ing of defense efforts to expose that falsehood. Newly discovered evidence has established that Priscilla Durham, a hospital security guard who testified at trial to hearing Petitioner allegedly confess, has since admitted to concocting the story. Declaration of Kenneth Pate, Apr. 18, 2003. She admitted to Mr. Pate that in fact she never heard Petitioner make any incriminating statements. He recalls:

2. Sometime around the end of 1983 or the beginning of 1984 I had a telephone conversation with Priscilla Durham in which the subject of Mumia Abu-Jamal came up.

. . . .

5. Then Priscilla started talking about Mumia Abu-Jamal. She said that when the police brought him in that night she was working at the hospital. Mumia was all bloody and the police were interfering with his treatment, saying “let him die.”

6. Priscilla said that the police told her that she was part of the “brotherhood” of police since she was a security guard and that she had to stick with them and say that she heard Mumia say that he killed the police officer, when they brought Mumia in on a stretcher.

7. I asked Priscilla: “Did you hear him say that?” Priscilla said: “All I heard him say was “Get off me, get off me, they're trying to kill me.

Declaration of Kenneth Pate, Apr. 18, 2003.

Ms. Durham was the only civilian to claim that Petitioner admitted the shooting. There is a reasonable probability that if the jury was informed that Durham was pressured by police into lying, it certainly would have disregarded the alleged confession. Without proof of a confession, there is a reasonable probability that the verdict would have been different. . . .

Moreover, as in the situation of the fabricated testimony of Cynthia White, disclosure of the pressure placed upon Durham to falsely claim she heard the confession, would likewise create a reasonable probability that the other witnesses and evidence presented would be viewed by the jury with skepticism. In effect disclosure that the police caused both Durham and White to lie, would have brought into question the credibility and legitimacy of the other evidence presented again Petitioner. In that even the prosecution case against Petitioner would have collapsed like a house of cards.

By the prosecution concealing evidence that two of its crucial witnesses lied, Petitioner was deprived of his right to a fair trial and due process of law under the Fifth, Sixth and Fourteenth Amendments. The petition filed on behalf of him in the state court addressed both governmental interference and newly discovered evidence that could not have been discovered through the exercise of due diligence. Both claims allege violations of recognized constitutional rights under Amendments Five, Six, Eight and Fourteen. Both claims allege the prosecutorial suppression of exculpatory material evidence and the presentation of false evidence in contravention of the right to a fair trial and due process of law guaranteed by the Constitution . . .

The newly discovered facts establish that the police as part of the prosecution were involved in obtaining false material testimony against Petitioner at trial. The result compromised not only his fair trial rights, but led to a death judgment that violated the very essence of the Eighth Amendment.

CONCLUSION

The declaration of Yvette Williams discloses that Cynthia White told her that she lied on the stand because she feared reprisals from the police if she refused to do so. The declaration of Kenneth Pate reveals that Priscilla Durham lied in testifying against Petitioner because she was pressured to so by the police. The witnesses’ fears, created by the prosecution through the police, not only explains the false testimony but also why the witnesses did not come forward. The prosecutor in Petitioner’s trial had an absolute obligation to disclose the threats and efforts to suborn perjury. . . . By suppressing exculpatory evidence which included the fact that (a) a witness was persuaded to lie that she had witnessed the homicide, and (b) another was encouraged to manufacture a false confession attributed to Petitioner, contravened the right to a fair trial, due process of law, and a fair penalty trial, guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.

On August 21, 2008, the Philadelphia District Attorney filed a brief in opposition to the relief we seek on procedural grounds, that prior counsel failed to raise the issues in a timely manner. Even though the Supreme Court considers only an incredibly small number of cases at this stage, we remain hopeful in view of the prosecution's egregious misconduct.

Later in the year we will be going separately before the Supreme Court concerning the denial of an entirely new trial by the U.S. Court of Appeals for Third Circuit. That court did grant a new jury trial on the question of penalty, life of death. Nonetheless, we are pursing an entirely new trial. The issue of racism in jury selection will be presented, along with the fact that the prosecutor made misrepresentations to the jury in order to obtain a murder conviction against Mumia.

Conclusion I will not rest until Mumia is free. That he remains in prison and on death row is a travesty of justice and an affront to civilized standards. We must all continue to fight for what is right, and not lose hope. Free Mumia.